Jetobee Pty Ltd (in liquidation) v Smith & Young Pty Ltd (No 2) [2015] NSWSC 1522

Supreme Court New South Wales

Medium Neutral Citation: Jetobee Pty Ltd (in liquidation) v Smith & Young Pty Ltd (No 2) [2015] NSWSC 1522 Hearing dates: 7 and 8 October 2015 Date of orders: 07 October 2015 Decision date: 07 October 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: Objection overruled. Catchwords: EVIDENCE – credibility rule – exception for making this could substantially affect the credibility of a witness – no question of principle. Legislation Cited: Civil Procedure Act 2005 – s 56 Category: Procedural and other rulings Parties: Jetobee Pty Ltd (in liquidation) – Plaintiff Smith & Young Pty Ltd – Defendant Representation: Counsel: J. White, K. Josifoski – Plaintiff A. Macauley – Defendant

Solicitors: Gadens Lawyers – Plaintiff Buckingham Lawyers – Defendant File Number(s): 2015/067958

Judgment (revised from ex tempore) Exception to credibility rule in s 103(1); see transcript p 80 1. During the course of cross-examination of Mr Young, it became apparent that counsel for the plaintiff sought to take him to the transcript of evidence he gave in earlier proceedings where, I understand, it is said that he made a concession that he acted dishonestly vis-à-vis a bank, and made a misrepresentation to the Family Court. Objection was taken that this material goes solely to his credit and thereby invoked the credibility rule, which it clearly does. 2. Counsel for the plaintiff sought to justify the questions by reference to the exception to the credibility rule in s 103(1) of the Evidence Act 1995, namely, that the material could "substantially affect the assessment of the credibility of the witness". 3. The present context is an allegation that the witness, in effect, has concocted evidence of an agreement between two related companies that he controlled in or about January 2013. 4. The two particular matters that are said to be revealed by the transcript are, firstly, a concession that he acted dishonestly towards a bank some time around December 2012 by failing to correct a misapprehension on the part of the bank as to the ownership of certain assets. The other matter is said to be a concession by the witness that he misrepresented his asset position to the Family Court in or about December 2011. 5. Two factors identified in s 103(2) as matters to which regard should be had are whether the evidence tends to prove the witness knowingly or recklessly made a false representation when they were under an obligation to tell the truth, and the period of time that has elapsed since the acts or events to which the evidence relates. In the case of the misrepresentation to the Family Court, those events are, in the timeframe of these proceedings, relatively recent and there clearly was the relevant obligation on the witness' part. 6. In my view, bearing in mind the test is that the evidence "could substantially affect the assessment of the credibility of the witness", I think that the relevant test has been satisfied. I also reach the same conclusion in relation to the alleged dishonesty towards the bank. There may be room for doubt as to whether the reference to an obligation to tell the truth in s 103(2)(a) extends to a person's dealings with a bank but, even assuming it does not, I think, given the relative recency of those events, and that they, in fact, appear to have occurred at around the same time as the events the subject of this matter, that the test has been satisfied. 7. Accordingly, I am satisfied that the exception in s 103 has been made out. Questioning consistent with this judgment will be allowed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2015